Gulati, J.:— This is a petition under article 226 of the Constitution. The petitioner is a private limited company, which carries on the business of manufacture and sale of suit-case locks, etc. For the assessment year 1963-64, the petitioner filed a return of its income and was assessed to income-tax by an assessment order dated 12 March, 1968. No claim was made by the assessee for rebate under section 84 of the Income-tax Act, 1961. The assessee appealed against the assessment order but no such claim was made before the appellate authority either. Later on, in August, 1969, the petitioner filed an application under section 154 of the Act praying for a relief under section 84. That application was rejected by the Income-tax Officer, “A” Ward, Aligarh. Thereafter, the petitioner moved the Commissioner of Income-tax by way of a revision petition. The Commissioner of Income-tax by an order dated 6th March, 1972, has rejected the revision petition. The petitioner has now challenged the order of the Commissioner as well as of the Income-tax Officer.
2. Section 84 provides relief to an assessee in respect of income earned from a new industrial undertaking. The claim for a rebate under this provision has to be made by an assessee in the return of income in which there is a column where the amount of income on which rebate is claimed under section 84 is to be shown. In the instant case the assessee did not fill up this column and otherwise also preferred no claim for a rebate under section 84 during the proceedings before the Income-tax Officer nor indeed was any such claim made before the appellate authority. Section 154 of the Act contains a provision under which any mistake apparent from the record can be rectified by any income-tax authority. Now, when the assessee does not prefer any claim for rebate under section 84 and consequently the Income-tax Officer does not deal with it, it is difficult to understand as to how the Income-tax Officer can be said to have committed a mistake which can be rectified under section 154 of the Act. It is true that the relief contemplated by section 84 is mandatory and must be allowed to an assessee, if the conditions for its allowance exist. One of the conditions under section 84 is that the industrial undertaking must be new. It must not be a reconstitution of an old undertaking. In fact, there are several other conditions, as enumerated in section 84(2), which must be satisfied before the relief under this provision becomes admissible. Now, whether an industrial undertaking is new or not within the meaning of section 84 is a question which must be decided by the Income-tax Officer when a claim in that behalf is made before him. In the absence of any such claim there will be no occasion for him to go into such a question and to record a finding and, in the absence of a finding that the industrial undertaking is new, which fulfils all the requirements as enumerated in sub-section (2) of section 84 the question of allowing rebate simply does not arise. There is nothing on record to show that the undertaking of the petitioner is new to which the provisions of section 84 are attracted. The mistake, if any, was committed by the petitioner in not preferring the claim and not by the Income-tax Officer.
3. It is said that a claim under section 84 had been made by the petitioner in proceedings under the Super Profits Tax Act, 1963, in respect of the assessment year 1963-64 and, as such, the claim under the Income-tax Act also should be deemed to have been made. It is difficult to accept this contention. The Super Profits Tax Act, 1963, is a different Act altogether. A separate return is filed under that Act. The proceedings under the Super Profits Tax Act cannot be said to be a part of the proceedings under the Income-tax Act. That apart, even in the proceedings under the Super Profits Tax Act, no finding has yet been recorded that the petitioner's undertaking is new and that the petitioner is entitled to rebate under section 84 of the Act. In these circumstances, it was not possible for the Income-tax Officer to have allowed any relief to the assessee in its assessment under the Income-tax Act.
4. Moreover, section 84 limits the relief to 6 per cent, of the capital employed in the undertaking. The capital employed is to be computed in accordance with rule 19. No such computation has been made. Clearly, the facts upon which section 84 operates were not there on the record. In fact, what the petitioner is seeking by way of an application under section 154 is to prefer a claim for the first time which he ought to have preferred before the Income-tax Officer during the assessment proceedings or later before the appellate authority. Section 154 is not meant for preferring a claim which the assessee has omitted to prefer in the assessment proceedings. As has already been indicated above such a claim requires evidence by the assessee and a finding by the Income-tax Officer. It is not possible to undertake such an enquiry under section 154 which operates only on the facts which are already on the record. No new facts can be introduced under that provision.
5. The learned counsel has strongly relied upon a decision of this court in Swadeshi Cotton Mills Co. Ltd. v. Income-tax Officer, Special Investigation Circle, C-Ward, Kanpur [1966] 60 ITR 720 All.. In that case, the Income-tax Officer, after making assessment for the year 1956-57, discovered that the rebate of corporation tax had not been reduced by proper amount inasmuch as he had failed to exclude the capital invested in ordinary preferred shares which carried a fixed dividend of 4 per cent, besides the capital invested in preference shares. The figures of capital invested in preference and ordinary preferred shares were on the record. The Income-tax Officer had merely omitted to apply the appropriate provision while reducing the rebate. It was held by this court that in such a case section 35 of the Indian Income-tax Act, 1922 (which corresponds to section 154 of the Income-tax Act, 1961), has properly been applied. There is no analogy between that case and the case of the petitioner. That was a case where a mandatory provision of law had not been applied to a certain set of facts. Here, in the case before us, the petitioner has first to make a claim for the rebate and thereafter the Income-tax Officer had to record a finding on the evidence adduced by the petitioner in support of the claim. All this is missing. The case of A.H Wheeler & Co. Private Ltd. v. Income-tax Officer, Allahabad [1964] 51 ITR 92 All. is also of similar nature. There also the Income-tax Officer had omitted to reduce the super-tax rebate and thus allowed the excessive relief to the assessee. This mistake the Income-tax Officer sought to rectify under section 35 of the Indian Income-tax Act, 1922. In that case it has been held that a mistake which can be rectified under section 35 can be a mistake of fact or law and that the Income-tax Officer has power under section 35 to examine the whole record. There can be no two opinions about this proposition. As we have already pointed out, in the case before us there is no mistake, much less a mistake apparent on the record. The Income-tax Officer cannot be said to have committed a mistake in omitting to deal with the claim of the assessee which was never made.
6. For the reasons stated above, we find no merit in this petition and the same is dismissed with costs.